APPEAL by the defendant from a judgment of the County Court (C. Randall Hinrichs, J.), rendered November 3, 2005, in Suffolk County, convicting her of manslaughter in the first degree and criminally negligent homicide, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing, of that branch of the defendant's omnibus motion which was to suppress her statements to law enforcement officials.
The opinion of the court was delivered by: Covello, J.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
WILLIAM F. MASTRO, J.P., JOSEPH COVELLO, RUTH C. BALKIN & LEONARD B. AUSTIN, JJ.
The principal question presented for our review on this appeal is whether the jury, which convicted the defendant of manslaughter in the first degree under Penal Law § 125.20(4) and criminally negligent homicide (see Penal Law § 125.10), rendered an inconsistent verdict. We answer that question in the affirmative.
The defendant allegedly caused the death of her baby soon after giving birth to him. In the first count of a two-count indictment, the defendant was charged with depraved indifference murder under Penal Law § 125.25(4). In the second count of the indictment, she was charged with manslaughter in the first degree under Penal Law § 125.20(4). A common element of each crime is that an adult defendant caused the death of a child less than eleven years old (see Penal Law §§ 125.20, 125.25).
The matter proceeded to a suppression hearing, after which the hearing court refused to suppress certain statements the defendant made to certain detectives. Contrary to the defendant's contention, the record supports the hearing court's conclusion that she voluntarily made those statements after knowingly, voluntarily, and intelligently waiving her Miranda rights (see Miranda v Arizona, 384 US 436). Accordingly, the hearing court correctly denied suppression of those statements (see People v Valverde, 13 AD3d 658, 659).
The matter then proceeded to a jury trial. During the trial, the trial court granted the defendant's request to charge criminally negligent homicide (see Penal Law § 125.10) as a lesser-included offense of depraved indifference murder under Penal Law § 125.25(4). Contrary to the defendant's contention, the trial court properly denied her request to give a particular charge to the jury concerning "live birth" (cf. CJI2d [NY] Penal Law § 125.05; People v McDonald, 283 AD2d 592, 593; People v Brown, 250 AD2d 774, 775).
Following a lengthy colloquy about how the three charged crimes would be submitted to the jury for its consideration, the trial court instructed the jury to initially consider the first count charging depraved indifference murder under Penal Law § 125.25(4). The court then instructed the jury that if it acquitted the defendant of that crime, the jury had to consider criminally negligent homicide as a lesser-included offense of depraved indifference murder under Penal Law § 125.25(4). The court then instructed the jury that, regardless of the verdict on the first count, it had to consider the second count charging manslaughter in the first degree under Penal Law § 125.20(4).
The jury acquitted the defendant of depraved indifference murder under Penal Law § 125.25(4). However, the jury convicted the defendant of criminally negligent homicide. The jury also convicted her of manslaughter in the first degree under Penal Law § 125.20(4).
The defendant contends, as she did when moving to dismiss both counts at the close of the People's case, that the evidence was legally insufficient to support a finding that her baby was born alive. However, viewing the evidence in the light most favorable to the prosecution (see People v Contes, 60 NY2d 620, 621), we find that it was legally sufficient to support such a finding. Moreover, upon our independent review pursuant to CPL 470.15(5), we are satisfied that the jury's implicit finding that the defendant's baby was born alive was not against the weight of the evidence (see People v Romero, 7 NY3d 633, 643-644).
The defendant also contends that the jury verdict was inconsistent. The defendant's contention in this regard is unpreserved for appellate review (see CPL 470.05; People v Alfaro, 66 NY2d 985, 987; People v Stahl, 53 NY2d 1048, 1050). Nevertheless, under the circumstances, we reach that contention in the exercise of our interest of justice jurisdiction (see ...